Classification has an unholy handmaiden, the pre-publication review board

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Any federal employee who’s come near classified or secret information know what happens if they try to publish something or give a speech. The federal government has at least 17 pre-publication review boards with the authority to say no. The whole apparatus has led to what this guest calls several pathologies. Yale University Law Professor Oona Hathaway joined the Federal Drive with Tom Temin.

Interview transcript:

Tom Temin: Ms. Hathaway Good to have you on.

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Oona Hathaway: Good to be here.

Tom Temin: And let’s begin with the thesis that you have outlined in a pretty detailed essay published by Yale. And that is that the original intent of reviewing publications started with one agency for one narrow purpose and seems to have morphed over the decades into this giant machinery for squelching people. Tell us the basic idea going on here.

Oona Hathaway: Yeah, that’s exactly right. So this process started as just a very small mechanism for reviewing highly classified information in the CIA. So the thought was, there are these CIA agents out there, and they know lots of highly classified things. And we don’t necessarily want them going out and writing books about it without the CIA being able to review it and make sure that they’re not revealing important classified information. So it started as this very small process just in one agency. And today, it is a massive system of prior restraint on speech.

Tom Temin: And how did that come to be? Other agencies decided they could do this, but isn’t there a legal kind of infrastructure under which this ought to be operating?

Oona Hathaway: Basically, this started in the CIA, as I mentioned, and then various intelligence agencies began to sort of add their own pre-publication review process. And under President Reagan, he actually issued an executive order requiring all of the agencies that handled classified information to subject those who have access to classified information to pre-publication review. Congress actually got really upset about this, understandably thought it was a terrible restraint on speech, that it created a real possibility that presidents were going to stifle the free speech of people who had served in the administration’s before them, and was about to legislate, to do something about it to basically knock down this executive order that Reagan had issued, and Reagan withdrew it. But while you might think that that was a success, what actually happened is, instead of having this executive order that governs the whole system, every agency just went off and developed its own pre-publication review process. So now we have this kind of mess of individual pre-publication boards, each with their own rules that exists today.

Tom Temin: Well, should there be any limit on what someone can say, post facto, even if they leave government and knew classified and secret information while they were there?

Oona Hathaway: Yeah, absolutely. And to be clear, there are already a whole host of laws, right? So you’re still prohibited, no matter what, even if we abolish the pre-publication review process today, you’d still be prohibited from revealing classified information, you could be thrown in jail if you did, right. So there’s the whole set of criminal laws that apply to former government employees. All that the pre-publication review process does is it adds this additional burden on former government employees, which basically says, anytime you want to write something, you got to submit it back to your agency, and they get to read the whole thing and decide if they’re going to let you publish it or not.

Tom Temin: What would happen if someone just published a book that they felt was not revealing secrets, and they went ahead and published it and just didn’t ask the review board? Would they be in legal trouble at that point?

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Oona Hathaway: Yeah, they would be potentially if they revealed classified secrets, they, again could be put in jail. But this is actually what happened in this very famous Supreme Court case, Snepp v. U.S., a case in which a former CIA official published a book that included information CIA considered to be classified. It’s actually not entirely clear that it really did include classified information, the court actually never found that it did. And the government actually withdrew claims that actually included classified information. But what they did is they went after him for failing to submit the book for pre-publication review. And then they seized all of the royalties that he earned for the book. And that’s one of the big penalties that the federal government has to hold over people who want to publish books without submitting them for pre-publication review.

Tom Temin: So that’s the famous Snepp case.

Oona Hathaway: Exactly. And this is, you know, big deal for people who want to make some money after they leave government by publishing their book, the fact that you can go through all of this. This happened with one of the people who was part of the bin Laden operation, he published a book Zero Day and had I think it was a million dollar advance. It was a huge amount of money and he published it without submitting it for pre-publication review, and the federal government went and seized his advance and hear nothing from that book.

Tom Temin: All right, so yeah, try it at your peril. We’re speaking with Oona Hathaway. She’s a professor at Yale Law School and editor at it’s Just Security Journal. So you mentioned the pathologies this whole process has produced, I guess we’ve touched on some of them. What are they?

Oona Hathaway: So there’s some obvious ones like if you can’t speak as a former government official, who knows something about what the government does, you can’t speak to the general public, you can’t write about matters without going through this incredibly slow, cumbersome pre-publication review process. You know, sometimes if you want to write a book, it can take a year or more to get it approved. If you want to write an article, it can take months to write an op-ed, it can take months, you know, op-eds, they don’t generally stay useful for more than a few hours. So if you have to submit it to this process that takes a really long time to get approved, it effectively silences you.

So that means that you don’t have former government officials actually being able to inform the public and write about the things they know something about. That’s, I think, a real cost to our democracy. It also has the effect of intimidating, intimidating people from speaking. So even if they could get it put through the pre-publication review process, the fact that they have to go through this incredibly cumbersome process, I think for a lot of people, it’s just like they decide it’s not worth it. You know, why should I go through all this? It takes forever, it’s just easier to stay silent. And that means we don’t learn the things that they know.

Tom Temin: And to what degree does this extend to their knowledge or what knowledge is covered by this? I guess they could write a children’s novel and they would be OK without a pre-publication review. But there seems to be a gray area, just watching the cable news networks on my studio monitor all day switching around, I see this former official from the intelligence community, that former four-star general opining in this case on Ukraine events, intelligence events, and they’re listed as special contributors to this or that network. What kind of structure or limitations are they under? And how do they do this day after day? Because obviously, they’re not checking in with their former agencies?

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Oona Hathaway: Yeah, I think some of those folks are probably breaking rules, to be honest, that depending on the agency they work for, and what their particular review process rules might be, they may have decided to kind of just give up on submitting to pre-publication review. And honestly, that’s what a lot of people end up doing. Because it’s kind of impossible to be an effective commentator, to write or even to teach. You know, I’m a professor of international law, it would be hard for me to get every slide that I put up in front of my students approved through pre-publication review. And I worked for the Department of Defense as special counsel to the general counsel and I had top secret SCI clearance. And so I’m covered by these pre-publication review board requirements at the Department of Defense. And when I’ve tried to get the Department of Defense to tell me, what do I not have to submit to you? Like, what, what are the kinds of things that you know, I can write without having to submit, they always just say, well just submit it, and then we’ll tell you. Once I submit it to you, I have to wait around until you approve it. And sometimes, you know, they take way too long. And I can’t submit every lecture, I can’t submit every piece of writing than I do. And so for a lot of people, they just end up having to kind of throw up their hands and just think I don’t know how to comply with this system. I know that I’m not disclosing classified information that would do harm to national security to the United States. And so I just am going to have to do my job and take the risks that accompany that.

Tom Temin: And what would be the remedy for this to simply get rid of the PRBs and go back to the existing statutory limitations on divulging secrets? Or is there some legislative or regulatory fix you think could help?

Oona Hathaway: Yeah, I think certainly one possibility is just to get rid of it altogether, and rely on the criminal justice system. So that that is a possibility. But I think that you could go to some kind of more intermediate solution, which is a much more minor pre-publication review process. So one possibility would be invite people to submit their work for pre-publication review, if they have any concerns that it might possibly include classified information, and then give them a safe harbor from criminal prosecution for disclosing classified information if they’ve done that. So I write a book, I am a little bit worried about it, I want to be sure there’s nothing in here that might be classified, I submit it. And when I get the green light from my former agency, then I know that when I publish it that I don’t have to worry about running into trouble with the federal government. So that would be one possibility. There also could be much greater clarity about actually what has to be submitted. Right now it’s just so broad, it’s often really unclear what you’re supposed to submit. And right now, the way the pre-publication review rules work, it binds you for an entire lifetime. And I can tell you having worked, I just worked for a year at Department of Defense, so wasn’t a particularly long time. But the secrets that I knew are not particularly interesting anymore. And so I think a lot of this could be significantly constrained if it applied for say one, two, three, four or five years as opposed to your entire lifetime. And that would also reduce the bulk of the information that was coming into the boards and therefore they might be able to review the stuff they do get much more quickly. So there are a number of possible reforms to really make this system much more streamlined and much more sensible.

Tom Temin: Oona Hathaway is a professor at Yale Law School and editor at it’s Just Security Journal. Thanks so much for joining me.

Oona Hathaway: Thank you so much for having me.

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